Opinion
No. 15–0884.
02-11-2016
PEOPLE of the State of New York ex. rel. Thomas A. KEARNEY, Relator, For a Judgment Pursuant to Article 70 of the Civil Practice Law and Rules, v. Greene County Sheriff SEELEY, Respondent.
Thomas A. Kearney, Greene County Jail, Angelo F. Scaturro, Esq., Catskill, NY, for Relator. Edward I. Kaplan, Esq., Catskill, NY, Counsel for Respondent.
Thomas A. Kearney, Greene County Jail, Angelo F. Scaturro, Esq., Catskill, NY, for Relator.
Edward I. Kaplan, Esq., Catskill, NY, Counsel for Respondent.
LISA M. FISHER, J.
Relator is an inmate whom commenced this Article 70 habeas corpus action via Petition, which was never provided to the Court, and an amended Petition, sworn on September 17, 2015, against Respondent Greene County Sheriff Seeley. His Petition claims, inter alia, that he previously commenced a lawsuit against the Preliminary Hearing Officer (hereinafter “PHO”) Richard Kratzenberg, which is still pending. Thus, Petitioner claims that the PHO is biased and should have recused himself at the start to the parole revocation hearing, but he has continued to preside over the matter.
The Court issued a Writ of Habeas Corpus setting the return date for November 30, 2015, and granted Relator's request for alternative service. Respondent requested a week adjournment, which was granted by Relator's counsel. Respondent timely opposed and submitted an Answer, and amended Answer, to the Petition and Amended Petition. Relator opposed with an undated Reply, received by the county clerk's office on December 17, 2015.
Initially, the Court notes there are multiple extraneous issues with this matter. Notably, counsel for Relator and counsel for Respondent have been properly in communication with each other regarding this matter—including providing extensions to each other for service or opposition papers. It does not appear Relator was appraised of same. For this reason, it appears Relator has formed the opinion that he has not been adequately represented, while the Court's review of the record demonstrates no such deficiency.
Rather than contact the Court first for direction how to proceed, impetuously Relator filed a disciplinary complaint against his court-appointed attorney. Relator simultaneously informed the Court he took such action. The record indicates that the court-appointed counsel attempted to meet with Relator, and Relator refused to speak with his appointed-counsel, believed his counsel was a hindrance, and that his counsel was working in collusion against him. None of these allegations are supported in the record.
The Court reviewed the submissions and required clarification which may have been addressed if Relator cooperated with his court-appointed counsel. The Court forwarded correspondence to all parties inquiring as to the status of the preliminary hearing process which was merely identified in the submissions and not discussed. Relator's court-appointed counsel immediately submitted a response and supplemental response answering the Court's inquiry, however, noted that he was no longer counsel as Relator retained other counsel.
As such, the Court could not issue a decision until either Relator or his new counsel responded. Relator submitted a response enabling the Court to render this decision; this was received on February 4, 2016. He indicates his final parole revocation hearing is scheduled for February 16, 2016 thus a final decision has not been rendered.
It is well-established that a habeas corpus proceeding is “the appropriate means to challenge a revocation of parole[ ]” (People ex rel. Branch v. Barnes, 199 A.D.2d 726, 726 [3d Dept 1993] ; Matter of Soto v. New York State Bd. of Parole, 107 A.D.2d 693 [2d Dept 1985], affirmed 66 N.Y.2d 817 [1985] ) prior to the final parole revocation determination. (People ex rel. McCummings v. De Angelo, 259 A.D.2d 794, 794–95 [3d Dept 1999] ; People ex rel. Mack v. Reid, 113 A.D.2d 962, 963 [2d Dept 1985].) Therefore, Respondent's exhaustion of remedies argument fails as a final decision has not been rendered. (See People ex rel. McCummings, 259 A.D.2d at 795 [noting after a final decision is made, the petitioner's remedy would be to challenge the final parole revocation determination via appeal and not on collateral attack].)
“However, it is also well established that the remedy of habeas corpus is available only to one who is entitled to immediately release from the custody he is challenging.” (People ex rel. Mack, 113 A.D.2d at 963, quoting People ex rel. Malinowski v. Casscles, 53 A.D.2d 954 [3d Dept 1976].) Since Relator is on parole and thus already has a conviction, he is not entitled to immediate release. (See In re Soto, 107 A.D.2d at 695.) Thus, “[p]etitioner's appropriate procedural remedy ... is a CPLR article 78 proceeding, and [the Court] therefore convert the petition.” (People ex rel. Branch, 199 A.D.2d at 726, citing People ex rel Dell v. Walker, 186 A.D.2d 1043. 1043 [4th Dept 1992], lv denied 81 N.Y.2d 702 [1992] ; see also CPLR § 103[c].)
“While not invoking the full panoply of rights due to a defendant in a criminal trial, a parolee must be afforded certain basic procedural protections during a parole revocation hearing.” (Matter of Moore v. Alexander, 53 AD3d 747, 748 [3d Dept 2008], lv denied 11 NY3d 710 [2008].) Thus, “[a]t a parole revocation hearing, the minimum requirements of due process ... include a neutral and detached hearing officer[.]” ' (Matter of Moore, 53 AD3d at 748, quoting Morrissey v. Brewer, 408 U.S. 471, 480–84 [1972] [quotations omitted].) “Recusal, as a matter of due process, is required only where there exists a direct, personal, substantial or pecuniary interest in reaching a particular conclusion, or where a clash in judicial roles is seen to exist.” (People v. Alomar, 93 N.Y.2d 239, 246 [1999] [citations omitted].) These principles are further codified by statute (see Judiciary Law § 14 ) and by regulation (see 22 NYCRR § 100.2 ). While courts have declined to strictly apply these requirements to quasi-judicial officers such as PHOs (see Milliken Wollens, Inc. v. Weber Knit Sportswear, Inc., 11 A.D.2d 166 [1st Dept 1960] ; State Div. of Human Rights on Complaint of Davis v. Merchants Mut. Ins. Co., 59 A.D.2d 1054 [4th Dept 1977] ), the conduct of a hearing officer “shall be deemed a judicial function” (Executive Law § 259–i[5] ) and are still required to “conduct parole revocation proceedings fairly and impartially.” (Executive Law § 259–d [2 ]; see also People ex rel. Murray v. New York State Div. of Parole, 95 AD3d 1527, 1528 [3d Dept 2012] [noting that a parole hearing judge must be “neutral and detached inasmuch as he conducted the hearing in a fair and impartial manner”].)
Therefore, on the merits Relator succeeds in his argument that PHO Kratzenberg should have recused himself at the start of the preliminary revocation hearing. Contrary to Respondent's claim, this was not of Relator's own doing as Relator's federal lawsuit was filed in 2014. Given the litany of complaints raised by Relator, which the Court does not address as recusal of the PHO extinguishes any issues, the Court cannot say that Relator's hearing can be conducted when the PHO is named as a defendant in an active lawsuit prosecuted by Relator. Notwithstanding, there is no evidence submitted by Relator that the PHO acted in bad faith, thus “the proper remedy is a new hearing rather than restoration to parole supervision.” (People ex rel. McDaniel v. Travis, 288 A.D.2d 940, 941 [4th Dept 2001] ; see also People ex rel. Mott v. Kalamanka, 112 A.D.2d 720 [4th Dept 1985] ; People ex rel. Martinez v. New York State Bd. of Parole, 56 N.Y.2d 588 [1982].)
As to Respondent's claim that the Petition/amended Petition was not verified, the Court's version of the Amended Petition is properly verified.
To the extent not specifically addressed above, the parties' remaining contentions have been examined and found to be lacking in merit or rendered academic.
Thereby, it is hereby
ORDERED that Relator's Petition for habeas corpus is converted to an article 78 proceeding; and it is further
ORDERED that Relator shall be entitled to new hearing(s) for all proceeding(s) conducted by PHO Richard Kratzenberg as soon as reasonably possible and not inconsistent with this decision, and any decisions or orders made by PHO Richard Kratzenberg shall be VACATED.
This constitutes the Decision and Order of the Court. Please note that a copy of this Decision and Order along with the original motion papers are being filed by Chambers with the County Clerk. The original Decision and Order is being returned to the prevailing party, to comply with CPLR R. 2220. Counsel is not relieved from the applicable provisions of this Rule with regard to filing, entry and Notice of Entry.
IT IS SO ORDERED.
Papers Considered:
1. Writ of habeas corpus, signed October 30, 2015; Amended petition for writ of habeas corpus and memorandum of law, dated September 17, 2015;
2. Respondent's amended opposition to petition for writ of habeas corpus, of Edward I. Kaplan, Esq., with annexed exhibit, dated December 3, 2015; amended verified answer to unverified amended petition for writ of habeas corpus, of Edward I. Kaplan, dated December 3, 2015;
3. Verified reply to Respondent's opposition to verified petition, of Thomas A. Kearney, undated;
4. Affirmation of Angelo F. Scaturro, Esq., with annexed exhibit, dated January 27, 2016; supplemental affirmation, dated January 28, 2016; and
5. Affirmation of Thomas A. Kearney, with annexed exhibits, dated January 29, 2016.